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Rail supporters and opponents await ruling by appellate court

By Andrew Pereira

Published On: Aug 15 2013 06:57:00 PM HST

HONOLULU -

In a nearly hour-long hearing that was streamed live to the U.S. District Courthouse in Honolulu, a three-judge panel of the 9th Circuit Court of Appeals in San Francisco heard arguments Thursday on whether the city adequately studied alternatives to a $5.3 billion heavy rail system. The hearing was conducted by senior Circuit Judge Mary Schroeder, Circuit Judge Stephen Reinhardt and Circuit Judge Andrew Hurwitz.

Under the National Environmental Policy Act, any public works project that receives federal funding must conduct a reasonable evaluation of alternatives that achieve the same goals.

City attorney Robert Thornton told the three-judge panel of the 9th Circuit that the decision to build an elevated, heavy-rail system from East Kapolei to the Ala Moana Shopping Center was a political one after an exhaustive analysis.

“The role of this court of course is to determine was that determination arbitrary and capricious, and we submit that it was a well-reasoned decision, a well-reasoned policy choice,” said Thornton. “They complied with the National Environmental Policy Act for an exhaustive review of multiple alternatives.”

However, rail opponents who filed suit against the city say the guiding document for an alternatives analysis under NEPA is an environmental impact statement, and the EIS for Honolulu’s rail project failed to do what’s required.

“The failure to consider BRT (bus rapid transit) and managed lanes to me was arbitrary and capricious because nowhere in the EIS is there a reasonable explanation as to why these things weren't considered,” said former Gov. Ben Cayetano, whose among a group of politicians and community activists who filed suit against the city.

Cayetano also points out that in 2003 under former Mayor Jeremy Harris, BRT was recommended as the best system for Honolulu by consulting firm Parsons and Brinkerhoff. In late 2006, Parsons and Brinkerhoff authored the city’s Alternatives Analysis report, which concluded an elevated, heavy-rail system would be best for Honolulu.

“The BRT was preferable because it didn't cost as much (and) it wasn't as ugly as this one,” said Cliff Slater of HonoluluTraffic.com, the lead plaintiff in the case.

Thornton meanwhile, also argued the 9th Circuit may not even have jurisdiction over the case, since the U.S. District Court in Honolulu under visiting Judge A. Wallace Tashima has yet to rule on outstanding matters. Tashima must decide if the city needs to mitigate impacts of the rail project to Mother Waldron Park in Kakaako and traditional cultural properties in downtown Honolulu, which includes native Hawaiian burials. One of the options left open to Tashima is to require a tunnel underneath Beretania Street, which would lessen the impacts to Mother Waldron and TCPs. Tashima ordered the city to study all three points, and the tunnel option resulted in a supplemental EIS, which is still open after a comment period ended July 22.

“We believe that if it's kicked back to him with sort of keeping it on those three areas, that that's a good sign that we're headed toward its conclusion,” Dan Grabauskas, executive director for the Honolulu Authority for Rapid Transportation, said of the lawsuit.

During the hearing, questioning by the three judge panel gave rail opponents hope the project could be forced to conduct a new EIS as well as obtain another Record of Decision, which describes the alternatives considered and plans to mitigate potential environmental hazards.

Judge Hurwitz was the most aggressive in his questioning when he asked Federal Transit Administration attorney David Shilton the following:

“Are you going to forgo that argument later down the road, or are you reserving the ability to say later down the road, 'Well, in the meantime we built so much of this that there is no reasonably prudent alternative?’”

After some prodding Shilton finally conceded the city could not “rule any argument off the table in an equitable consideration.”

The 9th Circuit could issue a ruling on the case in a matter of days, or weeks. The appeals court is aware construction of the rail project could resume this fall after the state’s Historic Preservation Division finishes its review of an archeological inventory survey. Last August, the Hawaii Supreme Court halted construction of the project after ruling an AIS must be completed for all four phases of the elevated rail line.

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